America at the forefront of a lesser war

( Last of three parts )

His name is Donald Abelson, chief, International Bureau of the Federal Communications Commission, who wrote out an "Order" dated March 10, 2003 that shocks us not because of its arbitrary issuance since said bureau is a mere coordinating body of the FCC, but because of its extremely simplistic rhetoric, its naiveté, and the absolute absence of any rationale contained therein. The Abelson Order indicts and penalizes our Philippine telcos by saying in its conclusion that: "We order all US carriers providing facilities-based services to suspend payments for termination services to the Philippine carriers pending restoration of circuits on the US-Philippine route."

The Abelson Order, though circuitous, is downright malicious, frothing shamelessly with bad faith in its obvious intent to threaten non-payment by the US carriers, something the Philippines carriers do not have the luxury of undergoing, and imposes punitive measures without the observance of due process. There is no solution provided by Abelson as far as ensuring the direct flow of telecom traffic from the non-paying facilities-based US carriers to the terminating Philippine carriers. And all the latter were asking, was a reasonable increase in the termination rates below the FCC established benchmark of 19 cents, which, as the prescribed benchmark, carries with it the presumption of validity and reasonableness. The same is true vis-à-vis the ITU prescribed benchmark of 24 cents as regards the 12 cents for fixed line and 16 cents for wireless services.

The stupidity of the Abelson order becomes even more glaring when viewed from the fact that the entire global telecommunity that corresponds with the local carriers, except for one hoodlum-entity, AT&T, have already agreed and achieved a consensus through formal contracts on these new Philippine termination rates. It has always been the rule, may I emphasize, that the determination of rates and revenue-sharing arrangements between and among private parties must be achieved without the interference of any government body, no matter how powerful. The freedom to contract is enshrined in our constitution and the Civil Code. There are benchmarks precisely specified, in this case, by the UN specialized agency governing world telecom, the International Telecommunications Union (ITU).

NTC Chairman Armi Jane Borje with whom I talked lengthily on the matter, very strongly affirms that, the NTC, as the regulating body for the telecom and broadcast industry in the country does have as their basic mission, the "protection of the interest and welfare of its number one client - the consuming public." NTC believes that, "The order of the Chief of the International Bureau of the US FCC is unjust, unfair, without basis whatsoever, and undermines the viability and ability of our local telcos to continue providing good service to the public." She stressed the fact that while the NTC has, up to this time, continued to urge our telcos to pursue all avenues to come up with mutually acceptable agreements with the US carriers, specifically now with AT&T, "we cannot however allow foreign entities to disrupt the telecommunications business in our country by ordering their own carriers not to pay for services that they will get and especially for those already used and long overdue for payment."

It is an insult to the Philippine jurisdictional authorities and to our telecom industry, to throw a 21-page opinion coming from a bureau of the FCC, the International Bureau, which is a mere "coordinating body" of the FCC. It is not certainly the repository of any original quasi-judicial jurisdiction and powers unless these have been specifically delegated by the FCC to it. It was good to discuss these jurisdictional matters with Atty. Rudy Salalima, of Globe Telecom, a compatriot during our good old days of ITU pursuits. His views were identical to mine. On delegation of powers, we both agreed that it will have to be only on non-hearing and interlocutory matters, hence, since the Abelson Order is, as expressed in the Order itself, a decision both "final" and "on the merits" it cannot therefore be said that: a) the matters subject of the Order, are non-hearing, as a hearing on the merits should have been called, hence, due process was violated, and b) the Order interlocutory, because, as precisely expressed in the Order, the same is final.

What a mockery of a sacred right the FCC has made of the quasi-judicial system as it exists, and the fundamental right of due process that exists in civilized democracies today. And America wants to "civilize" and "democratize" every nation on earth? Gunnar Myrdal, one truly wise man, had stronger words to say: "I think America needs to be saved from the missionary idea that you must get the whole world on to American ideas, to American thought, and to the American way of life. This is really a big world danger." What conflict and confusion the FCC has inflicted on the global telecommunity by creating a problem under International Law in that our Philippine law, the Civil Code, specifically, on reciprocal obligations which constitute the law between the contracting parties, in effect, orders the US telcos in contract with the Philippine telcos, to arbitrarily breach their contractual obligations, suspend all payments, and let hell with "The Ugly American" in tow, break loose!

Private International Law or the "Conflict of Laws" rule on a matter such as this, provides that in the event of a conflict between a foreign and a local law, the local forum of course upholds the local law. And a US regulatory body like the FCC has indubitably and unquestionably no jurisdiction over our carriers. The Abelson Order wreaks havoc on the sacred concept the world over, as to the performance of contractual obligations, by so simplistically dismissing them and ordering non-payment by US carriers. Under the generally accepted principles of International Law which make up Customary International Law, Abelson has, in one fell sweep of his irrational pen, obliterated the principle of non-impairment of contracts and his order extends even to parties who are not even parties to the proceedings. The provisions of perfected contracts, the rights and obligations flowing therefrom constitute the law between the parties to it.

Lauterpacht, a fundamental authority on International Law, in his book "Private Law Sources and Analogies of International Law" states that "….the international and municipal legal orders are subordinate to a third legal order usually postulated in terms of natural law or ‘general principles of law’ superior to both and capable of determining their respective spheres." The general principle transgressed by the Abelson Order is the principle of sanctity of contracts and their non-impairment, entered into between juridical entities or persons whether the parties are both within the same state or are in two different states of the international community of nations.

I am fully aware that this is a mere "Order" emanating from the Chief of the so-called "International Bureau" of America’s regulatory body, which bureau is known to be a mere "coordinating body" of the FCC, but it has been made to adjudicate, make pronouncements devoid of basis or any hearing of course, and impose what in effect are punitive measures on our Philippine carriers, in fact, the entire Philippine telecommunications industry, which the Philippine government and the ITU cannot afford to ignore.

George Clemenceau was right: "America is the only nation in history which miraculously has gone directly from barbarism to degeneration without the usual interval of civilization."